UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 32BJ , Petitioner,

v. PREEMINENT PROTECTIVE SERVICES, INC. , Respondent. Case No. 1:17-cv-01679 (TNM)

MEMORANDUM OPINION The Service Employees Internati onal Union Local 32BJ (the “Uni on”) petitions this Court for an order compelling Pr eeminent Protective Services, I nc. (“Preeminent”) to arbitrate employment disputes for two m embers of the Union. Pet. to Comp el Arbitration (“Pet.”) ¶¶ 25- 29, ECF No. 1. Preeminent seeks to dismiss the petition, argui ng that the Court lacks subject matter jurisdiction and that the Union failed to state a claim because the two Union members were not Preeminent employees. Def.’s Mem. of P. & A. in Supp. of Mot. to Dismiss (“Mot. to Dismiss”) 5-7, ECF No. 5. The U nion filed a cross-motion for s ummary judgment disputing Preeminent’s contention that it did not employ the officers. M em. of Law in Opp. to Resp’t’s Mot. to Dismiss and in Supp. of Cro ss-Mot. to Compel Arbitratio n (“Opp. to Mot. to Dismiss”) 11-15, ECF No. 7. Upon considerati on of the pleadings, relevan t law, and related legal memoranda in opposition and in suppor t, I find that the Federal Arbitration Act and the Labor Management Relations Act confer s this Court with subject matter jurisdiction and that the matter is appropriate for arbitrati on. Accordingly, Preeminent’s moti on to dismiss will be denied and the Union’s motion for summary j udgment and to compel arbitrati on will be granted.2 I. Background The Union represents over 16,000 prope rty-service workers in th e Washington, D.C. area, including Security Officers Crystal Middleton and Renay C ampbell. Pet. ¶¶ 1, 7. Both officers worked at the Congress Heights Service Center, a D.C. public site covered by a Collective Bargaining Agreement (“CBA”) between the Union and P reeminent. Id. ¶¶ 5-7. Before February 2017, Business Resource and Security Services U SA, Inc. (“BRSS”) was the subcontractor that provided security officers to the Congress H eights Service Center and employed Officers Middleton and Campbell. Id . ¶ 7. In February 2017, Preeminent took over the subcontract from BRSS, inc luding providing security officer s to the Congress Heights Service Center. Id. ¶ 9. The Union claims that under the CBA, Preeminent was required to hire the BRSS officers, including Officers Middleton and Campbell. Id . ¶ 10; see also id. Ex. 1 Art. 9 (“When taking over or acquiring an account or location covered by a co llective bargaining agreement with the Union in Washington, DC or Maryland or Virginia, the E mployer will offer employment to and hire incumbent employees who have been employ ed at the account or location for at least six (6) m onths and who accept the offer o f employment”). The Union claims that Preeminent recognized its obligation and began treating Of ficers Middleton and Campbell as employees, including having them complete and sign employment d ocuments, referring to the officers as “transfers” from BR SS, and paying their wages from February 1, 2017 forward. Id

. ¶ 12. Preeminent does not disput e that it disbursed payroll st arting on February 1, 2017, but claims that the money for thatparticular disbursement was prov ided by the prime contractor, and that it did not take over the subcontract until February 10, 20 17. Mot. to Dismiss ¶¶ 4-5.3 Preeminent claims that it neve r employed Officers Middleton or Campbell because its client, the District of Colum bia, requested on February 8, 2017 —two days prior to Preeminent taking over the subcontract—that the officers be removed from t he Congress Heights Service Center. Id. ¶ 6. In Preeminent’s view, because the officers were dismisse d by BRSS on February 8, 2017, Preeminent was co ntractually barred from hiri ng the officers. Id. ¶ 7; see also Contract No. DCAM-12-NC-0031 City -Wide Security Services § C.19 .2, ECF No. 5-2 (“In situations deemed appropriate by t he [Contracting Officer’s Tec hnical Representative], the COTR, in his or her sole discreti on, may summarily direct the C ontractor to remove its employee from a facility and the Contractor shall remove such employee i mmediately and supply a replacement with no lap se in coverage.”); id. § C.19.4 (“The Contractor s hall be required to dismiss such employees within atimeframe ranging from ‘immedia tely’ to ‘within a week,’ as specified by the COTR. Any empl oyee so dismissed shall at no t ime be eligible to work under this contract.”). The Union disa grees, citing a provision of t he CBA that provide s that, unless the employee is discharged for cause, “the Employer will place the employee in a job at another account or location covered by thi s Agreement.” Pet. ¶ 14; id. Ex. 1 Art. 7.3. Because the Union believed that Officers Middleton a nd Campbell were obligated to be hired by Preeminent, were Preeminent employees, and were not placed at another site, it f iled grievances with Preeminent on behalf of both officers. Id. ¶¶ 10, 12, 15; see also id. Ex. 1 Art. 23 (setting forth grievance and arbitration procedures for “[a ]ll disputes or differences i nvolving the interpretation or application of this Agreement that arise betw een the Union and the Employer”). The Grievance Initiation Letters, both filed on February 13, 20 17, allege that the officers were “unjustly discharged effec tive 2/10/2017.” Mot. to Dismis s Exs. 5-6, ECF Nos. 5-6, 5-7. Between February and April 2017, th e Union and Preeminent excha nged several4 communications about the dispute, b ut the Union alleges that Pr eeminent never challenged whether the disput e was arbitrable. See Pet. ¶¶ 19-23. On August 4, 2017 , the parties appeared before an arbitrator, and Preemin ent contended that the arbitra tor lacked jurisdiction over the proceeding because the officers were not Preeminent employees. The arbitrator d iscontinued the proceeding because of his view that “there is a question of whe ther there exists jurisdiction over Preeminent as the Employer in thi s dispute under the Parties’ C ollective Bargaining Agreement which should be resolved in court. ” Mot. to Dismiss Ex. 10, EC F No. 5-11. The Union then filed its petition in this Court.

II. Legal Standards
A. Subject Matter Jurisdiction Subject matter jurisdiction con cerns a court’s power to hear a claim. Macharia v. United States , 334 F.3d 61, 64 (D.C. Cir. 2003). The plaintiff bears the bu rden of proof to establish that the court has subject matter jurisdiction. Arpaio v. Obama , 797 F.3d 11, 19 (D.C. Cir. 2015). A court may look beyond the complaintto consider “undisputed fac ts evidenced on the record” to satisfy itself that it has su bject matter ju risdiction. Coalition for Underground Expansion v.
Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003).

B. Failure to State a Claim A party may move to dismiss a comp laint because it “fail[s] to state a claim upon which relief can be granted.” Fed. R . Civ. P. 12(b)(6). A complaint must contain sufficient factual allegations that, if true, “state a claim to relief that is pla usible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). A complaint is insufficient if it merely offers “‘labels and conclusions’” or “‘naked asserti on[s]’ devoid of ‘further factu al enhancement.’” Ashcroft v.5 Iqbal , 556 U.S. 662, 678 (2009) (quoting Twombly , 550 U.S. at 555, 546). Rather, “[a] claim has facial plausibility when the plai ntiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misco nduct alleged.” Iqbal , 556 U.S. at 678. In evaluating a motion to dism iss pursuant to Rule 12(b)( 6), the Court must construe the complaint in the light most favorable to the plaintiff and acce pt as true all reasonable factual inferences drawn from well- pled factual allegations. See In re United Mine Workers of Am. Emp. Benefit Plans Litig. , 854 F. Supp. 914, 915 (D.D.C. 1994). The Court does not acce pt as true legal conclusions or “[t] hreadbare recitals of the element s of a cause of action, supported by mere conclusory statements.” Iqbal , 556 U.S. at 678.

C. Summary Judgment A motion to compel arbitration is analyzed using the summary ju dgment framework of Federal Rule of Civil Procedure 56. Aliron Int’l, Inc. v. Cherokee Nation Indus., Inc. , 531 F.3d 863, 865 (D.C. Cir. 2008). To prevail on summary judgment, the movant must show that there is “an enforceable agreement to arb itrate,” after which the non-mo vant must “raise a genuine issue of material fact as to the making of the agreement.” Hill v. Wackenhut Servs. Int’l , 865 F. Supp. 2d 84, 89 (D.D.C. 2012) (internal quotation marks omitted). Su mmary judgment should be granted if there is “no genuine issue of fact concerning the fo rmation of the agreement to arbitrate.” Id . (internal quotation marks omitted). In determining whether a fact is material or an issue is genuine, the Court uses the familiar Rule 56 framework

. See Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 247-48 (1986) (explaining amaterial fact as on e capable of affecting the substantive outcome of the li tigation and a genuine issue as on e where a reasonable jury could find for the non-moving party). The Court views the evidence i n the light most favorable to the non-moving party. Johnson v. Perez , 823 F.3d 701, 705 (D.C. Cir. 2016).6 III. Analysis Preeminent’s two challenges to t he petition are to the Court’s subject matter jurisdiction over the matter and to the Union’ s failure to state a claim bec ause it alleges that BRSS, and not Preeminent, terminated the employees. Mot. to Dismiss 5-7. Ea ch is discussed in turn.

A. The Court Has Subject Matter Juri sdiction Under the Federal Arb itration Act and Labor Management Relations Act The Union brings this petition unde r the Federal Arbitration Ac t and/or the Labor Management Relations Act. Pet . ¶ 29. The Federal Arbitration Act allows a “party aggrieved by the alleged failure, neglect, or r efusal of another to arbitrat e under a written agreement for arbitration” to “petition any Un ited States district court whic h, save for such agreement, would have jurisdiction . . . of the subjec t matter of a suit arising out of the contro versy between the parties.” 9 U.S.C. § 4. As Preem inent points ou t, this text h as been interpreted to not confer jurisdiction on district courts , but permitting a district cour t to issue an order compelling arbitration only when there is “d iversity of citizenship or som e other independent basis for federal jurisdiction.” Mot. to Dismiss 5 (citing Kasap v. Folger Nolan Fleming & Douglas, Inc. , 166 F.3d 1243, 1245-46 (D.C. Cir. 1999)). The Labor Management Relations Act, on the other hand, grants f ederal courts with jurisdiction over “[s] uits for violation of contracts between an employer and a labor organization representing employees in an i ndustry affecting commerce as def ined in this chapter.” 29 U.S.C. § 185. It is undisputed that the CBA is a valid and enforceabl e contract between the Union and Preeminent. See Mot. to Dismiss 6 (citing the CBA). The Union’s petition seek s to redress alleged violations of that contract, Pet. ¶¶ 27-28, and the Uni on is undoubtedly a labor7 organization affecting commerce. See 29 U.S.C. § 142 (defining “indus try affecting commerce” as “any industry or activity in c ommerce or in which a labor di spute would burden or obstruct commerce or tend to burden or obstr uct commerce or the free flo w of commerce.”). Subject matter jurisdiction over this peti tion exists based on federal question jurisdiction. See 28 U.S.C. § 1331; see also District No. 1, Pac. Coast Dist., Marine Eng’r’s Benficial Ass’n, AFL-CIO v. Liberty Mar. Corp. , 70 F. Supp. 3d 327, 331 (D.D.C. 2014) (finding that the courthad, under 29 U.S.C. § 185, subject matter juri sdiction over a petition seeki ng an order to compel arbitration). Thus, I have subject matter jurisdiction under both Acts.

B. The Petitioner’s Grievances Shoul d Be Decided by the Arbitrator The Federal Arbitration Act and the Labor Management Relations Act intersect in at least one other meaningful way. Feder al courts may “fashion rules of federal common law” under the Labor Management Relations Act and may look to the Federal Arbi tration Act “for guidance in labor arbitration cases.” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc. , 484 U.S. 29, 40 n.9 (1987); see also Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv. , 52 F.3d 359, 362 (D.C. Cir. 1995). This body of case law reveals a few bedr ock principles that guide the resolution of the parties’ moti ons. First, “arbitration is a m atter of contract and a party cannot be required to submit to arbitrati on any dispute which he has not agreed so to submit.” AT&T Tech., Inc. v. Commc’ns Workers of Am. , 475 U.S. 643, 648 (1986). Second, whether a CBA requires the parties “to arbitrate the particular grievance-is undeniably an issue for judicial determination.” Id. at 649 (punctuation in original). 1 Third, the arbitrato r, and not the court, is

1 For example, questions for courts to resolve include whether an arbitration provision bound a surviving corporat ion post-merger, id. , whether arbitration was proper where a CBA had expired, Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B. , 501 U.S. 190, 209 (1991),8 the proper party to “rule on t he potential merits of the underl ying claims.” AT&T Tech. , 475 U.S. at 649

. Fourth, “where the contract con tains an arbitration clause, t here is a presumption of arbitrability in the sense that an order to arbitr ate the parti cular grievance should not be denied unless it may be said with positive assurance that the arbitrat ion clause is not s usceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” Id . at 650 (internal quotation marks and punctuation omitted). T he Court has also noted that “[s]uch a presumption is particularly applicable where the clau se is [] broad.” Id

. In this case, Preeminent’s a nd the Union’s quarrel is not about whether the parties entered into a valid, enforceable contract, or whether the arbitration clause in the contra ct applies to the parties. Instead, Preeminent ra ises a threshold question of wh ether the officers were Preeminent employees, and posits that they were not because they were dism issed by BRSS, making the Union’s claim against Preeminen t untenable. Def.’s Reply in Su pp. of Mot. to Dismiss (“Def.’s Reply”) 3, ECF No. 10. The Union mai ntains that the officers w ere not dismissed by BRSS and that they were therefore Preeminent employees who were wrongly discharged by Preeminent. Pet.’s Statement of Material F acts Not in Dispute and Resp. to Respt’s Statement of Material Facts (“Pet.’s SOMF”) 8-9, ECF No. 7. Analysis of the principl es summarized by the Supreme Court in AT&T Technologies counsel that the question is pr operly for the arbitrator to de cide. While it is true that Preeminen t has not consented to arbitrati ng matters not involving its own employees, putting forth to the arbitrator whether the offi cers were Preeminent employees does not force Preeminent to arbitrate a dispute to which it ha s not consented. The arbitrator could either determine that the officers were not Preeminent employees—in which case the

and whether a particular CBA pr ovision covered the dispute at i ssue, Air Line Pilots Ass’n v. Fed. Express Corp. , 402 F.2d 1245, 1248-49 (D.C. Cir. 2005).9 arbitration goes no further—or tha t the officers were Preeminen t employees, after which the arbitrator would continue onto eva luating the merits of the off icers’ grievances. The parties do not dispute that the arbitrator should be the adjudicator of th e merits of a grievance properly before him, or that a valid arbitration agreement exists betwee n the parties. Thus, this matter is in a distinct category from the cases that Preeminent cites to support its position: Stromberg Sheet Metal Works, Inc. v. Wash ington Gas Energy Systems, Inc. involved the assignment of an arbitration right to a non-party, which the court found to be v alid, 484 F. Supp. 2d 64, 69-70 (D.D.C. 2006), and Hill v. Wackenhut Se rvices International involved a challenge to the “very existence of a contract contain ing an arbitrati on provision.” 865 F. Supp. 2d 84, 90 (D.D.C 2012). And of course, the facts in t his case are different tha n other cases holding that the question was for the c ourt’s resolution. See supra Part III.B. note 1 (lis ting cases holding that the judiciary should determine whet her parties were bound to or by an arbitration clause and whether the dispute at issue was withi n the scope of disputes covered b y an arbitration clause). None of those circumstances is at issue here. More similar to the facts presen ted by this case are instances in which arbitration was proper despite the respondent’s position that the grievant was a probationary employee excluded from the application of an arbitration agreement. In United Steel Workers of America, AFL-CIOCLC v. Simcala, Inc. , a district court f ound that “the question of whether the grie vant was or was not a probationary employee serves only as a defense to the mer its of the grievance” and granted a motion to submit the matter to arbitration. 111 F. Supp. 2d 1287, 1292, 1294 (M.D. Ala. 2000); see also U.S. Postal Serv. v. Am. Postal Workers Union , 553 F.3d 686, 688-89 (D.C. Cir. 2009) (reversing the district court’s vacatur of an arbitration award when the parties agreed that the arbitrator could decide wheth er the grievance was arbitrabl e and he ruled that it was because10 the grievant was not separate d during her proba tionary period). Similarly, the arbitrator here, after taking in the evidence presented by both sides, could det ermine whether and which entity dismissed the officers. This determination comports withthe “presumption of arbitrabil ity” and the preference to resolve doubts in favor of coverage. See AT&T Tech. , 475 U.S. at 650. It is certainly possible for the arbitrator to determin e that the officers were, or shou ld have been, Preeminent employees, in which case the grievance b ecomes a live fight. This counsel s that the arbitrator should be the one to resolve this dispute. See id. Leaving this determination to the arbitrator is all the more appropriate because the Union and Preeminent agreed to a broad arbitration clause: “ Alldisputes or differences involving the interpretation or application of this Agreement that arise between the Union and the Employer shall be r esolved as provided for in thi s Article, except that the Employer may obtain injunctive reli ef from a court to enforce A rticle 6 [No Strikes, Picketing or Other Interruption of Work/ No Lockouts].” Pet. Ex. 1 Art. 23.1 (A) (emphasis added); see also AT&T Tech. , 475 U.S. at 650 (holding that “[s] uch a presumption [of arbit rability] is particularly applicable where the clause is as broad as the one employed in this case, which provides for arbitration of ‘any differences ari sing with respe ct to the int erpretation of this contract or the performance of any obligation here under’”). The present issue is a difference of opinion about the application of the CBA to t he two officers, and this should be determined by the parties’ arbitrator.